Filed 6/7/22 Eaves v. Union Oil Company of Cal. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiffs, half-brothers Gary and Randy Eaves, worked for many years at a tire manufacturing plant in Texarkana, Arkansas, using rubber solvent containing benzene manufactured and supplied by defendant Union Oil Company of California (Union Oil). Gary and Randy died of cancer in 2015 and 2018, respectively. Before their deaths, they filed suit with their families against Union Oil and other defendants for negligence and other claims, alleging that their occupational benzene exposure had caused their cancers. A jury ultimately found for the plaintiffs on their negligence claim and awarded Gary’s family $10.95 million and Randy’s family $10.3 million, including, for each family, a $9 million award of noneconomic damages. The trial court conditioned a denial of Union Oil’s motion for a new trial on damages on the plaintiffs accepting a reduction of each noneconomic damage award by 50 percent to $4.5 million, finding that the jury had improperly considered the families’ past relationships with the decedents in reaching the $9 million amount. Plaintiffs accepted the reduction.

Both sides appealed. Union Oil argues that substantial evidence does not support the jury’s verdict because expert testimony was required on the standard of care for the negligence claim, and that the testimony of plaintiffs’ medical expert failed to establish causation because plaintiffs’ expert did not rule out alternative causes of plaintiffs’ cancers, and failed to exclude the possibility that those cancers were of unknown cause. Plaintiffs argue the trial court erred in concluding that the noneconomic damage awards were excessive and in conditioning denial of Union Oil’s new trial motion on their reduction. We reject both appeals and affirm the judgment.

BACKGROUND

The Setting

Gary Eaves worked at the Cooper Tire & Rubber Company (Cooper Tire) manufacturing plant in Texarkana, Arkansas from 1973 to 2013, as a green tire hauler/trucker in the truck tire department from 1973 to 1977, as a radial tire spray booth operator from 1977 to 1987, and again as a green tire hauler/trucker from 1987 until his retirement in 2013.

Spray booth operators sprayed the tires with solvents on the inside and the outside after they were assembled. According to Millard Nall, who was a spray booth operator with Gary from 1977 to 1987, each tire was sprayed for three to four seconds, and Gary sprayed from 2,500 to 2,800 tires per shift. Gary got the tire spray on his body and clothes “[v]ery frequently,” and the air around the spray booths was “cloudy” and “hazy,” such that “[y]ou could almost feel it.”

Another co-worker, Harell Engledowl, testified that Gary “would be soaking wet” with solvent from taking the tires out of the spray booths. According to Engledowl, “[t]he ventilation was terrible . . . the air was full of this—this spray. It was full of fumes from the curing presses that were right across the way from it, and the air quality was very, very poor.” The air “smell[ed] like benny,” a smell “somewhere between . . . lighter fluid and gasoline.” “Benny” was a term the workers used for benzene.

Co-worker Arthur Tipton testified that “it was a haze all—any time you went in” to the tire curing department and “t was just a cloud or a haze hanging over the place, because you had the—the spray booths running and the—the stuff coming out of them, and yeah, it was always—always a haze.” The “stuff coming out of the spray booths” was “spray lube mixed with the benny.”

“You are aware of the furor resolving [[i]sic] around the toxicity of benzene. This has led to the rubber companys’ [sic] workers and their industrial hygienists to insist that they handle no solvents containing any benzene. Consequently, all of the rubber companies are purchasing only solvents with 1% maximum benzene. Some are demanding less if available.

“In August 1976 we attempted to answer these demands by lowering the benzene specification for Chicago Rubber Solvent to wt. %^[[7]] maximum. This product is meeting with very good acceptance.

“We were told the straight-run Rubber Solvent at Beaumont Refinery would require hydrogenation to similarly lower the benzene content. This, of course, would have taken some hydrogenation capacity away from other, more valuable products. Therefore, we have been attempting to blend Beaumont Rubber Solvent to less than 1% benzene. These blends have proven to be [a] stop-gap at best. They are expensive, and they can utilize up to four or five components. The other components are usually valuable products such as hexane and heptane. Textile spirits could be useful except for the difficultly in blending to less than 1% benzene when textile spirits specification allows for 0.8% benzene. Beaumont Rubber Solvent itself should represent no more than about one-third of a blend since it may contain up to 3% benzene. Recently, we had a major rubber company admit one of our blends met their rubber solvent specification, but refuse to approve it since 0.5% benzene material is available.

“By this, I am asking that Beaumont Refinery find us another rubber solvent with less than 1% benzene. Perhaps they could blend analogously to Chicago’s Rubber Solvent? Existing Rubber Solvent specifications are otherwise adequate guidance into the type [of] product we need. A dry point of 275 ± 10°F would be preferable, but we will not be too picky about that.

“Perhaps the request should come from the Specifications Committee? AMSCO will help in any way that will help quickly. I emphasize quickly, we are losing money!”

And, Dr. Stewart testified, at the time of this memorandum there was ongoing discussion in academia, and in the industry, about how to reduce the use of benzene due to its toxicity.

Dr. Stewart was then asked what the sentence “We were told the straight-run Rubber Solvent at Beaumont Refinery would require hydrogenation to similarly lower the benzene content” meant. He explained: “So the hydrogenation step, you have a benzene molecule here, and you have hydrogen. [¶] You have another process step, and what it does is it forces that hydrogen into the benzene, and it’s not benzene anymore. [¶] With this process you can essentially get rid of—essentially all the benzene if you apply it very aggressively.”[8]

Other Union Oil memoranda, likewise bearing on its conduct, were entered into evidence, one of which, dated March 25, 1977, indicated that “hydrogenation of the Rubber Solvent feed is still the elegant solution to a 1.0% maximum benzene Rubber Solvent,” but the “[e]stimated cost would be $2,000,000.” Another, dated July 1, 1976, explained that rubber solvent manufactured at the Lemont refinery also contained benzene, but with a benzene content that was “typically . . . less than 1.0%, often as low as 0.5, and occasionally as low as 0.1%.” That memorandum continued, “[t]herefore, to produce a 1.0% or less benzene content Rubber Solvent at Beaumont, two methods come readily to mind in discussing this with the refinery. 1) Install additional hydrogenation facilities. 2) Blend with a hydrogenated stream.”

So, returning to the language of CACI No. 1221—what Union Oil “knew or should have known about the likelihood and severity of potential harm from the [rubber solvent]”—Dr. Harrison testified that “[b]enzene is a deadly toxic chemical . . . that has been known to be toxic to the blood system since the [mid-]1890s.” And, he added, it has been known since the 1890s that exposure to benzene can cause cancer; that the first case of leukemia associated with benzene exposure was reported in 1928; and that scientific studies identified benzene as a cancer-causing agent “definitely by the 1960s.”

Union Oil also knew that its rubber solvent contained benzene “as a result of being made from crude oil.” And it also knew, no later than the mid-1970s, about the health concerns surrounding the toxicity of benzene and its rubber solvent, itself reporting on the “considerable discussion [that] has arisen with many rubber companies over the benzene content of rubber solvents” and the “furor resolving [sic] around the toxicity of benzene” that had “led to the rubber companys’ [sic] workers and their industrial hygienists to insist that they handle no solvents containing any benzene.” Union Oil’s rubber solvent manufactured at the Beaumont refinery contained “up to 3% benzene,” ranging from 2 to 3 percent, despite that various manufacturers began to require rubber solvent blends containing a maximum of 1 percent benzene.[9] In addition, a 1982 Union Oil document recounted “the benzene scare” of the mid-1970s.

Union Oil asserts in its brief that it stopped producing rubber solvent at its Beaumont refinery rather than spend the money to use hydrogenation. But the evidence showed that it was producing rubber solvent there again by the mid-1980s.

As to the other aspect of CACI No. 1221—“the burden of taking safety measures to reduce or avoid the harm” posed by its benzene-containing solvent—Union Oil’s own documents showed that by July 1, 1976, it was considering the use of “additional hydrogenation facilities” to reduce the benzene content of its Beaumont rubber solvent, but that it decided not to do so because that “would have taken some hydrogenation capacity away from other, more valuable products,” this, despite the fact, as Dr. Stewart put it, hydrogeneration could “get rid of—essentially all the benzene if you apply it aggressively.” Likewise, as quoted, the March 1977 memorandum discussing the benzene content of Union Oil’s Beaumont rubber solvent stated that hydrogenation was “still the elegant solution” for reducing the benzene content, but it chose not to use it because of the cost—a fact, not incidentally, it conceded in its motion for JNOV.

Whether a manufacturer or supplier of a product was negligent, i.e., whether it used reasonable care in the design, manufacture, or supply of its product, is ordinarily a question of fact for the jury. (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 474 (Pike); CACI Nos. 1220, 1221.) And as Pike earlier said: “What is ‘reasonable care,’ of course, varies with the facts of each case, but it involves a balancing of the likelihood of harm . . . and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm. [Citation.]” (Pike, supra, 2 Cal.3d at p. 470.) Here there was substantial evidence from which the jury in performing the requisite balancing could conclude that Union Oil was negligent, i.e., that it did not use reasonable care in connection with its benzene-containing solvent. To put it in negligence terms, and the balancing required, Union Oil chose cost over human safety.

As the Supreme Court noted in Pike, supra, 2 Cal.3d at p. 473, reversing a non-suit in a product liability case, for the “ ‘purpose of showing that there has been a failure to comply with the standard of due care, it is proper to introduce evidence as to the necessity and feasibility of changes in the design [of the product] so as to enhance the factor of safety.’ [Citation.]”

In sum, there was evidence of negligence. Whether negligent design, or manufacture, or supply, it was simply what negligence is: failing to “use the amount of care . . . that a reasonably careful manufacturer would use under similar circumstances.” That negligence is supported by the evidence here. Indeed, as plaintiffs’ counsel point-blank told the jury in closing argument, not one of Union Oil’s witnesses “came to say it wasn’t negligent.”

Expert Testimony in Negligence Cases

Union Oil asserts that the question of whether expert testimony was required to establish the standard of care is an issue of law that we review de novo, citing Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 761.) This is how the Supreme Court set forth the rules in Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546: “The formulation of the standard of care is a question of law for the court. (Ishmael v. Millington (1966) 241 Cal.App.2d 520, 525; Rest.2d Torts, § 328B, subd. (c).) Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether the defendant’s conduct has conformed to the standard. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1061; Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 237-238, fn. 3; [citations]; Rest.2d Torts, § 328C, subd. (b); see also Rest.2d Torts, § 328B, com. g.)

“In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc., supra, 6 Cal.4th at p. 546.)

To the extent Union Oil appeals from the denial of its motion for JNOV, the law is that “ ‘[a] motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.’ (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) On appeal, ‘[a]s in the trial court, the standard of review is whether any substantial evidence—contradicted or uncontradicted—supports the jury’s conclusion.’ (Ibid.)” (Frausto v. Department of California Highway Patrol (2020) 53 Cal.App.5th 973, 995–996.)

In Flowers v. Torrance Memorial Hosp. Medical Ctr. (1994) 8 Cal.4th 992 (Flowers), a case alleging negligence in the way plaintiff was placed onto a gurney in defendant’s emergency room, our Supreme Court explained the rule regarding expert testimony in negligence cases involving medical malpractice:

“ ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.” [Citations.]’ (Landeros v. Flood (1976) 17 Cal.3d 399, 410, quoting Sinz v. Owens (1949) 33 Cal.2d 749, 753; Huffman v. Lindquist [(1951)] 37 Cal.2d [465], 473.) The ‘common knowledge’ exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.’ [Citations.]” (Flowers, supra, 8 Cal.4th at p. 1001; see 1 Witkin, Cal. Evidence (5th ed. 2021) Burden of Proof and Presumptions, §§ 141–143 [detailing the rule in medical malpractice context].)

Flowers described the medical malpractice rule as “the general rule applicable in negligence cases arising out of the rendering of professional services.” (Flowers, supra, 8 Cal.4th at p. 1001.) Thus: “In negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional’s acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the layperson’s common knowledge includes the conduct required by the particular circumstances.” (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239 (Unigard); see id. [applying rule to legal malpractice].)

So, the “Sources and Authorities” for CACI 600: “Standard of Care” in professional negligence cases provides: “California law does not require an expert witness to prove professional malpractice in all circumstances. ‘In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen.’ ” (Ryan v. Real Estate of the Pacific, Inc. (2019) 32 Cal.App.5th 637, 644–645 (Ryan).)

“[E]xcept . . . where the negligence is obvious to laymen.” As here.

We begin by noting the obvious: this is not a professional negligence case. In any event, the rule of negligence “obvious to laymen” has been applied more broadly, including in the products liability context. For example, in a section titled “Proper Subjects of Nonexpert Opinion,” “Negligence,” discussing a case from this court, Witkin’s Evidence provides:

“In Easton v. Strassburger (1984) 152 [Cal.App].3d 90, 199, . . . plaintiff purchaser of a residence recovered damages from defendant, the vendor’s real estate broker, for negligent failure to discover and disclose defects in the property (built on fill and subject to massive earth movements).

“On appeal, defendant contended that the judgment should be reversed because no expert testimony was received on the critical issues of standard of care applicable to defendant and defendant’s failure to meet the standard. Held, no such testimony was necessary.

“The court pointed out that expert testimony is not required where a question is resolvable by common knowledge. This rule, most fully developed in the medical malpractice cases (see 1 Cal. Evidence (5th), Burden of Proof and Presumptions, § 139 et seq.), applies here: Defendant’s agents knew of the fill and the settlement problems frequently associated with such soil, and were also aware of such indications as an uneven floor and the use of netting to repair an earlier slide.” (1 Witkin, Cal. Evidence (5th ed. 2021) Opinion Evidence, Opinion of Lay Witness, Proper Subject of Nonexpert Opinion, Negligence, § 17.)

Union Oil argues that the standard of care was outside the common knowledge of the jury, and that therefore expert testimony on that subject was required, relying principally on the same three cases it did below in support of JNOV: Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689 (Miller); Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284 (Webster); and Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403 (Howard). The trial court rejected the argument, concluding that expert testimony was not required, and that Dr. Harrison’s expert opinion was sufficient to support the negligence verdict. As the trial court aptly put it:

“The issue is not whether there was a design defect, but whether Union Oil (a) knew of the hazard; and (2) [sic] could reduce the hazard (i.e., lower the amount of benzene in the product). An expert is not required on the feasibility of reducing benzene in rubber solvents, because the evidence before the court indicated that lower benzene rubber solvents already were available and in production at the times in question.” Indeed, one “major rubber company” refused to use Union Oil’s solvent “since 0.5% benzene material is available,” and Union Oil itself was producing a solvent with lower benzene content at its Lemont refinery.

We agree with the trial court—and the cases relied on by Union Oil are distinguishable.

In Miller, plaintiffs brought a negligence claim against the firm that built their home after it was destroyed in a flood; the case was tried to a jury; and the trial court granted a nonsuit on the ground the evidence did not establish a prima facie showing of negligence. (Miller, supra, 8 Cal.3d at pp. 692–694.) On appeal, plaintiffs argued that the trial court erred in requiring expert testimony as to the practices of builders in the area in order to establish the standard of care. (Id. at p. 701.) The Supreme Court rejected the claim. The Court first observed that “f the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case.” ([i]Id. at p. 702.) The Court then continued as follows:

“[W]e are satisfied that it was not for nonexpert minds to determine whether Noble Manors failed to exercise due care in the construction of the home. Building homes is a complicated activity. The average layman has neither training nor experience in the construction industry and ordinarily cannot determine whether a particular building has been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry. [¶] In the instant case, the issue as to whether or not the Miller home had been negligently constructed involved a multitude of subsidiary questions bearing not only upon the erection of the structure itself but also upon the location of the house on the particular lot, the elevation of the lot, the influence of the surrounding terrain, the possibility of run-offs and floods, and the existence of the debris dam. These were not questions which the jury could have resolved from their common experience and the trial judge properly concluded that the issue of the allegedly negligent construction of the Miller residence was one within the knowledge of experts only.” (Miller, supra, 8 Cal.3d at pp. 702–703.)

In Webster, supra, 26 Cal.App.5th 284, plaintiff had been injured during a yoga class and brought a negligence claim against her instructor and the yoga studio. (Id. at p. 286.) Defendants moved for summary judgment, and in support filed a declaration from a psychotherapist and yoga instructor who opined that instructor’s “actions as alleged by plaintiff ‘were within the standard of care for a yoga instructor teaching a Restorative yoga class.’ ” (Id. at p. 287.) Plaintiff opposed the motion, but did not file any declarations. The trial court granted the motion, and the Court of Appeal affirmed, because “t was incumbent on plaintiff to contradict [the defendant’s expert] evidence with competing expert testimony. She did not do so.” ([i]Id. at p. 289.) The court also rejected application of the exception for negligence within the jury’s common knowledge: “Surely, however, ‘the lay person’s common knowledge’ would not include ‘the conduct required by the particular circumstances’ of a yoga instructor in [defendant]’s position, and an expert’s opinion on the question would be of benefit. [Citation.]” (Ibid.)

Howard, supra, 203 Cal.App.4th 403, involved a plaintiff who was injured when he slipped and fell in a bathtub manufactured by defendant Kohler. (Id. at p. 410.) Defendant moved for summary judgment by introducing expert evidence that the bathtub complied with applicable industry manufacturing and safety standards, even though the plaintiff also submitted an expert declaration stating that those industry standards were “minimal and not stringent enough to satisfy basic ‘principles of forensic safety.’ ” (Id. at p. 415.) The trial court granted summary judgment, and the Court of Appeal affirmed.

After first observing that “[t]he type of materials and techniques used for manufacturing products are not matters of ‘common knowledge,’ ” Howard went on: “Moreover, such expert testimony about the safety of a product, in light of industry standards, can also take into account other applicable and relevant circumstances. [Citation.] As framed by CACI No. 1221, the negligence inquiry asks if the manufacturer failed to use the amount of care in designing the product that a reasonably careful designer or manufacturer would have used in similar circumstances. Kohler’s qualified engineer described the methods that are used at the factory to ensure that certain standards are met in the production of the anti-slip coating, such as auditing and testing the friction coefficient of a certain number of bathtubs per week, and by having a protocol to replace the grit that is used for sandblasting on a routine basis, to assure that the machinery does everything that it is supposed to do. Kohler receives complaints about its products and investigates them.” Because the plaintiff’s expert “presented only conclusionary statements of opinion” and failed to “show why the procedures used by Kohler to address the problem of slipperiness, or the industry standards that it followed, were somehow inadequate,” summary judgment was properly granted for the defendant. (Howard, supra, 203 Cal.App.4th at pp. 429–430.)

Both Webster and Howard were appeals from summary judgments, after the defendant introduced expert evidence showing it had met the standard of care. Because plaintiffs failed to rebut that expert evidence, the court concluded that they could not establish an element of their claim. (See Howard, supra, 203 Cal.App.4th at pp. 429–430; Webster, supra, 26 Cal.App.5th at pp. 289–290.) These cases do not stand for the proposition that a plaintiff must introduce expert testimony showing that defendant did not meet the standard of care at trial, even where the defendant introduces no such expert evidence.

But more importantly, these cases do not apply because it is the rule that expert testimony is not required that applies here. This case does not involve building homes, “a complicated activity” involving “a multitude of subsidiary questions” about a structure and the lot and terrain surrounding it (Miller, supra, 8 Cal.3d at pp. 702–703); or the standard of care for a particular type of yoga instructor (Webster, supra, 26 Cal.App.5th at pp. 289–290); or the methods of engineering and testing anti-slip coating for a bathtub. (Howard, supra, 203 Cal.App.4th at pp. 429–430). Instead, it involved the question of whether Union Oil should have lowered or eliminated the benzene content of its rubber solvent, a practice already in place in the industry in general and at other Union Oil facilities in particular. As the trial court correctly found, the jury’s common knowledge here included the conduct required of a reasonable defendant by these particular circumstances—indeed, knowledge given them by Union Oil’s own memoranda.

One final observation: of Union Oil’s California cases only Howard involved a product, there a bathtub.[10] And using Howard as an example of the contrast between Union Oil’s cases and the situation here, we find two significant distinctions: (1) unlike Kohler there, Union Oil did not introduce any evidence that its product complied with applicable manufacturing and safety standards; and (2) the evidence in Howard did not include, as the record does here, memoranda from Kohler admitting of any “furor”; or that its anti-slip coating was being rejected in the marketplace; or that its competitors had better anti-slip products; or that it chose not to make a better product because of the expense. All such evidence was present here.

Union Oil attempts to avoid this conclusion with two arguments. First, it argues that in post-trial proceedings, plaintiffs argued that the jury could have inferred a “zero-benzene” standard of care from Dr. Stewart’s testimony that “[w]ith this process you can essentially get rid of—essentially all the benzene if you apply it very aggressively,” and that there is not substantial evidence to support such a theory, going on to dispute certain of the evidence on this point. Second, and similarly, Union Oil takes issue with the trial court’s statement in denying the motion for JNOV that “the evidence before the court indicated that lower benzene rubber solvents already were available and in production at the times in question,” arguing that just because lower-benzene solvents were feasible does not mean failure to produce them was negligent, and again arguing that expert testimony was required on the standard of care. These arguments fail for the reasons explained above: the jury was not required to choose between a “zero-benzene” theory or a “lower benzene” theory; instead, they were properly instructed on the standard of care, and substantial evidence supports their conclusion that reasonable care under the circumstances required Union Oil to lower or eliminate the benzene content of its rubber solvent.

Finally, Union Oil argues that because the trial court decided not to instruct the jury on plaintiffs’ risk-benefit theory of strict design defect liability on the ground that there had been no “expert on design of rubber solvents and effectiveness and whether you needed benzene or not,” plaintiffs’ negligent design defect claim should not have gone to the jury either, because strict liability design defect should have been “easier” to prove than a negligent design claim. (See Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 431.) But expert testimony was required for plaintiffs’ strict liability claim[11], whereas for all the reasons we set forth above, it was not required for plaintiffs’ negligence claim here.

Substantial Evidence Supports the Jury’s Finding of Causation

Union Oil’s second argument is that there was no substantial evidence of causation, for two reasons: (1) the evidence failed to establish that a particular design defect caused plaintiffs’ cancers; and (2) Dr. Harrison’s testimony failed to establish causation because it failed to rule out (i) Randy’s use of the immunosuppressant azathioprine as the cause of his AML or Gary’s obesity as the cause of his NHL, and (ii) the possibility that plaintiffs’ cancers were idiopathic, i.e., of unknown cause.

The Law

“Causation is established for purposes of California tort law if the defendant’s conduct is a ‘substantial factor’ in bringing about the plaintiff’s injury. ([State of California v.] Allstate [Ins. Co. (2009)] 45 Cal.4th [1008,] 1036; Rutherford v. Owens–Illinois, Inc. (1997) 16 Cal.4th 953, 968–969 [(Rutherford)]; see Judicial Council of Cal., Civ. Jury Instns. (2018) CACI Nos. 400, 430.)” [12] (Liberty Surplus Ins. Corp. v. Ledesma & Meyer Constr. Co. (2018) 5 Cal.5th 216, 223.)

“The substantial factor standard is a relatively broad one, requiring

only that the contribution of the individual cause be more than negligible or theoretical.” (Rutherford at p. 978.) “In Rutherford, the court recognized that ‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor,’ but warned that ‘ndue emphasis should not be placed on the term “substantial.” ’ ” (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 999.)

DISCUSSION: Plaintiffs’ Cross-Appeal[u][13]

Plaintiffs argue that the trial court erred in conditionally granting Union Oil’s motion for a new trial on the issue of damages on the ground that the jury’s noneconomic damage award was excessive.

The Law and the Evidence

In a wrongful death action, noneconomic damages are intended to provide the monetary equivalent of loss of comfort, society, and protection. (See Corder v. Corder (2007) 41 Cal.4th 644, 661.) And so the jury was instructed pursuant to CACI No. 3921 that:

“Plaintiffs also claim the following noneconomic damages: [¶] 1. The loss of their decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support; and [¶] 2. The loss of their decedent’s training and guidance.”

On these subjects, the jury heard the testimony of five witnesses: Randy’s daughters Jessica Marianne Weems and Jennifer Kvarda, Gary’s sons Dustin and Cody Eaves; and Gary’s wife Regina Eaves.

Marianne Weems

Randy’s daughter and plaintiff Jessica Marianne Weems (Marianne) testified that she lived with her parents until she was married at 29 years old. She described hers as “a strong closeknit family” with “a lot of love.” They had family-style dinners every night and spent every holiday together.

After Marianne graduated from college in 2005, Randy was retired and at home, and so her relationship with him became even stronger in part because they were at home together.

When asked how Randy expressed his love, Marianne testified that even after she moved out of the house, Randy would call her “[p]retty much everyday,” and “[t]hrough his illness, if I didn’t hear from him by a certain time, I knew he was having a bad day, so I knew to call.” They lived 45 minutes away from each other. As to care and assistance, Marianne also testified that she did not have children and takes a couple vacations a year with her husband, during which her father would “come take care of things around our house that needed to be taken care of, the animals, just anything that we possibly need done in our house.”

With respect to moral support, training, and guidance, Marianne testified that Randy used to take the family on vacations around the 4th of July, that he took interest in the sports she was interested in during her childhood, and that he taught her how to perform various tasks around the house. After her mother was diagnosed with Alzheimer’s, Randy would “take care of things around the house,” but after his death, Marianne went over to her mother’s house two to three times a week to help take care of various tasks.

Jennifer Kvarda

Plaintiff Jennifer Kvarda was Randy’s daughter from a previous marriage. Her parents divorced when she was 1 year old and she lived primarily with her mother, but saw Randy every other weekend and once a week during the summer.

She testified that Randy was “[d]efinitely” the “kind of Dad who couldn’t wait to see [her],” that they went camping and took day trips, and that Randy “just tried to spend as much time as possible with us.” When Jessica’s daughter was born in 1997, her relationship with her parents became “much closer.” And when asked about care and assistance, Jennifer testified she could “call [her father] for anything, and he—if he couldn’t do it, he was going to help figure out how it could be done.”

Dustin Eaves

Gary’s son Dustin Eaves described their family as “tight-knit.” Gary was 39 years old at the time of trial. He began working at Cooper Tire in 1999, and moved out of his parents’ home in 2004 or 2005, moving to Texarkana, about 17 miles away. Even into his adulthood, Dustin saw his father every day at work. While Dustin worked at Cooper Tire, he would go his parents’ house “pretty regularly,” where he would feed fish, eat at a local café, and “pretty much just kill time together” with his father. Dustin and his father would often discuss sports and their work at Cooper Tire.

After Gary became sick, Dustin testified that his father spent most of his time in Dallas, and Gary would visit him there on his way to and from work in Midland, sometimes spending the entire weekend.

Before Gary became sick, he would mow, do laundry, pressure wash the house, and do everything except cook, tasks that he was not able to perform after his diagnosis. When asked about the loss, Dustin testified that he missed his father showing affection, the companionship of doing things together, seeing his father at work, and his father’s interest in what he was doing and how his kids were doing. “He always had my back, and that’s gone now.”

Cody Eaves

Gary’s son Cody, 37 years old at the time of trial, had a “good relationship” with his father. They “did a lot of stuff together,” with their main interests being “sports, cars, guns—did a lot of shooting, a lot of fixing up cars.” Cody moved out in 2003 and moved to Texarkana, about 20 minutes from his parents’ house. Afterward, Cody would come back a couple times a week to “eat and hang out a little bit.” Cody also spoke to his father on the phone nightly, and would see him for lunch while they both worked at Cooper Tire.

When asked about the loss of his father’s love, care, and assistance, Cody testified that “Dad worked hard. You didn’t have to worry about anything. He took care of all your needs, necessities and wants. He—took care of us real good . . . [H]e would help us regardless if we asked or not. If I worked a lot of long hours, . . . he’d mow the yard for us. My wife, she’d work. He’d be at the doorstep picking up the kids every morning, picking them up from schools on his days off, picking them up. I never had to ask for anything from Dad.”

When asked about his father’s moral support, training, and guidance, Cody testified that “anything I was into he was into,” that his father always made sure he had “ammo” for shooting and target practice, and taught him about hard work and how to treat people well. With respect to his father’s love: “He loved us . . . . You could tell it in his—my kids. He really loved my kids. He’d do anything for them. And any events, school, dance recital, he was always there.” With respect to his father’s affection: “Growing up—he would tell us he loved us, but it wasn’t ’til we got older and families he—he would really tell us that he’s proud of us, and—that’s hard to miss that now. ”

Regina Eaves

Gary’s wife, plaintiff Regina Eaves, met Gary in high school at age 16 and was married to him in 1974. When asked what kind of husband Gary was, Regina testified that “Gary never had a problem telling me what—how he loved me. He was—He would tell me he loved me all the time. . . . He would sneak up behind me and grab me and give me a good big bear hug. That was . . . part of the way he liked to show that he loved me.” When asked about affection from Gary, Regina testified that “[h]e had a great way of showing affection,” would frequently send her flowers or a potted plant even when it was not a special occasion, and if she ever mentioned she liked a piece of jewelry or clothing, he would get it for her as a gift.

When asked about care, Regina testified that “his care for me was extended in a lot of ways,” that she was the “one who was always getting sick,” and that Gary would “make sure I was—I had whatever I needed, the meds, the Kleenexes, just anything.” When Regina had back surgery and could not get in and out of bed without help, Gary would roll her in and out of bed and help her get dressed.

In terms of protection, Regina testified that Gary “was a good protector. I didn’t have to worry about anything . . . he made sure the doors was locked, the lights were off. . . . He did a lot. We live on a busy highway, and we would have people that would stop, run out of gas, or have car trouble. I never had to worry about any of that. Now I do. I sleep with a ball bat—baseball bat by my bed in nighttime because I’m concerned that someone is going to be knocking on the door or ringing the doorbell.”

According to Regina, Gary was the kind of husband you could count on “[a]ll the time. He was always there.” When asked about Gary’s training and guidance, Regina testified that Gary taught her the difference between a flathead and Phillips head screwdriver, how to check the air pressure in her tire and read the tire gauge, and helped her in making decisions for her elderly parents. “Gary has some hard shoes to fill, and I can’t do it, but I’m trying.”

The Damages Verdict

In closing argument, plaintiffs’ counsel calculated that Randy and Gary, both 61 at the time of their deaths, had 21 years of life expectancy left, and requested $1 million in noneconomic damages for each of those years—$21 million for Randy’s heirs, and $21 million for Gary’s heirs. The jury awarded each family $9 million in noneconomic damages for “[t]he loss of [the respective plaintiff’s] love, companionship, comfort, care, assistance, protection, affection, society, moral support, training and guidance” from the date of their deaths to the expected date of their deaths.

Motion for a New Trial

In its alternative motion for a new trial, Union Oil argued that it was entitled to a new trial on damages because the damages awarded by the jury were excessive and not supported by sufficient evidence. Plaintiffs filed opposition and Union Oil a reply. After hearing argument, the trial court denied the motion conditioned on plaintiffs accepting a reduction in the damages, finding in relevant part as follows:

“The jury awarded $9 million in non-economic damages to each of the two families. . . . Union Oil further argues that the non-economic damages are above those reflected in other reported cases, and excessive relative to the economic damages.

“This Court has no doubt that the affection for decedents and the emotional loss from their deaths as expressed by the testifying family members was genuine. Gary and Randy were devoted and affectionate fathers and husbands. A good portion of the testimony was retrospective, i.e., discussed their relationship when the children were minors. While this is relevant to the prospective damages, it is not the appropriate measure by itself. Strong feelings remain from the childhood relationship, but the children are adults now (and not even particularly young adults) and the relationship changes over time. Randy and Gary’s premature deaths caused the plaintiffs to lose the future love and emotional support of the decedents, but did not rob the plaintiffs of their past upbringing.

“This element of damages is difficult, because neither party can claim that there is some formula or objective measure of damages for this type of harm. In closing argument, plaintiffs’ counsel asked the jury to award $1 million per year for each lost year of life expectancy for each plaintiff. No method of calculating the award was offered, nor could it have been. Plaintiffs point out that the jury awarded less than half of what was requested, thus the jury was not simply rubber-stamping counsel’s request.

“This does not make the verdict reasonable, any more than a $1 billion request would make $500 million reasonable.

“The Court has reviewed the verdict form to see if it shows any sign that the jury was inflamed or prejudiced. Two jurors voted against liability (see Questions 10 and 11 with jurors 5 and 6 voting against liability), yet those same two jurors concurred in the damage findings. The jury voted 2-10 against a finding of malice. If any inference can be drawn from those votes, it would not be that the jury was inflamed or emotional.

“Nonetheless, the Court concludes that, even with deference to the jury, the jury acted based on passion and sympathy by awarding an amount of damages that was based in large part on the past relationships during childhood and early adulthood, not the present and future that actually have been lost. The non-economic damage award is clearly excessive.”

The trial court went on to find that “[w]ith respect to the non-economic damages, a reduction in damages by 50% is fair and reasonable, i.e., from $9 million each to $4.5 million each.”

Plaintiffs consented to the reductions.

The Law

We recently summarized the applicable law in Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 639:

“The relevant legal principles are set forth in Pearl v. City of Los Angeles (2019) 36 Cal.App.5th 475: ‘Code of Civil Procedure section 662.5, subdivision (a)(2), authorizes a court that has decided it would be proper to order a new trial limited to the issue of damages to issue a conditional order granting the new trial unless the party in whose favor the verdict has been rendered consents to a reduction of the award in an amount “the court in its independent judgment determines from the evidence to be fair and reasonable.” A court exercising this authority acts as an independent trier of fact. [Citations.] [¶] The authority of the trial court in ruling on a new trial motion based on excessive damages “differs materially” from review of a damage award by an appellate court. [Citations.] In sharp contrast to appellate considerations of a claim of excessive damages on a cold record, the trial court “see[s] and hear[s] the witnesses” and can ascertain for itself “the injury and the impairment that has resulted therefrom.” [Citations.] Accordingly, when a trial court grants a new trial on the issue of excessive damages, whether or not the order is conditioned by a demand for reduction, “the presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the order.” [¶] We review the trial court’s use of its power of remittitur to reduce excessive damages for abuse of discretion.’ (Id. at pp. 485–486.)”

And we find none here.

The Remittitur Was Not an Abuse of Discretion

Introduction

Plaintiffs’ brief does not address the proper standard of our review, nor does it argue that the trial court abused its discretion in reducing the noneconomic damages award. Instead, plaintiffs set forth the law guiding the jury’s determination of noneconomic damages, including CACI No. 3921 as set forth above, and the trial court’s review of such damage awards, relying on Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 405 (Bigboy) for the proposition that “[t]he judge is not permitted to substitute his judgment for that of the jury on the question of damages unless it appears from the record the jury verdict was improper.” (Id. at p. 406.)

Plaintiffs go on to acknowledge that certain testimony at trial concerned the close relationships between Randy and Gary and their children during childhood and early adulthood, and they do not directly dispute that such past relationships were not a proper basis for an award of noneconomic damages, although they argue that the evidence was nevertheless relevant to determine the “closeness of a family unit, the depth of their love and affection, and the character of the decedent as kind, attentive, and loving.” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 201.) They assert, however, that “the jury also heard substantial testimony establishing that these relationships remained close and enduring as the children aged, moved toward middle adulthood, and had families of their own, and that this was true up until the time of Randy’s and Gary’s deaths,” going on to summarize some of that evidence. For example, plaintiffs point to Marianne’s testimony regarding her daily phone calls with her father even into her adulthood, to the fact that Jennifer’s relationship with her father “really cemented” after she had her own daughter, and to Dustin’s regular visits to his parents’ house even after he moved out. Plaintiffs also point to the testimony regarding Randy and Gary’s wives, noting that Gary took care of Regina and their property and similarly how Randy would have been able to help his wife Linda through her Alzheimer’s disease had he been alive.

Plaintiffs argue that this evidence supports the jury’s award of noneconomic damages that were not limited to the plaintiffs’ past relationships with their families, and that the jury’s verdict was therefore not improper. We reject the argument, largely because it misunderstands the proper standard of our review—and offers no argument that the trial court abused its discretion.

Analysis

As noted, when issuing an order denying a new trial conditioned on a reduction in damages, the trial court “acts as an independent trier of fact,” (Pearl v. City of Los Angeles, supra, 36 Cal.App.5th at p. 485, citing Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 933), and exercises its “independent judgment” to determine a reduction in damages that is “fair and reasonable.” (Code of Civ. Proc., § 662.5, subd. (a)(2).) The trial court here, which was able to “see and hear the witnesses” and ascertain for itself “the injury and the impairment that has resulted therefrom” (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507), weighed the evidence and concluded that an improper amount of the award was based on the strength of plaintiffs’ relationships in the past rather than the prospect of losing those relationships going forward. Plaintiffs essentially ask us to reweigh or reconsider that determination, rather than demonstrating that the trial court abused its discretion. This, we will not do. (See People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1250 [“Under [the abuse of discretion] standard, ‘[w]e do not reweigh the evidence or substitute our notions of fairness for the trial court’s’ ”].)

Bigboy, supra, 154 Cal.App.3d 397, on which plaintiffs rely, is not to the contrary. There, plaintiff brought suit against San Diego County after he was rendered a paraplegic when a car in which he was a passenger skidded off a road maintained by the county. (Id. at p. 401.) The trial court denied the county’s motion for a new trial conditioned on plaintiff accepting a reduction in the jury award from $2.25 million to $1.75 million. (Id at. p. 402.) In a short written statement of its reasons, the trial court explained that “the award of damages is excessive when compared with awards in similar cases,” “all of the needs of plaintiff will be adequately provided for if the plaintiff received an award in the vicinity of one million dollars,” and “[t]he Court believes that the excessive verdict was the result of the defendant County’s effort to defend the indefensible, combined with the fact that the plaintiff had an unusual appeal and would naturally evoke great sympathy from any normal human being.” (Id. at pp. 402–403.)

The Court of Appeal reversed. Because Code of Civil Procedure 657, subdivision 7 requires that “it shall be conclusively presumed” that an order for a new trial was made only for the reasons specified, the Bigboy court examined the three reasons given by the trial court and found each insufficient. (Bigboy, supra, 154 Cal.App.3d at pp. 406–408.) First, the court concluded that “the trial judge’s personal opinion based on the ranges of awards in other cases does not show the jury should have clearly reached a different verdict” and was therefore irrelevant. (Id. at p. 407.) It was in this context that the court observed that “[t]he judge is not permitted to substitute his judgment for that of the jury on the question of damages unless it appears from the record the jury verdict was improper,” with citation to two cases finding the statement of reasons insufficient.[14] (Id. at p. 406.) Bigboy went on to find that the county’s position in the litigation and the court’s opinion of Bigboy’s likeability were not relevant considerations either, and that therefore the required statement of reasons was insufficient. (Id. at pp. 407–408.) And in the course of discussing what the statement of reasons does require, the Bigboy explained that “t is helpful if the court declares what witnesses it believed, what testimony was to be disregarded or the value of any impeachment.” ([i]Id. at p. 404.)

Here, plaintiffs do not contend that the trial court’s explanation of its reasons for conditionally granting the order for a new trial was inadequate. Instead, and in contrast to Bigboy, the trial court clearly explained what evidence it considered improper and “what testimony was to be disregarded,” and further explained its reasoning for reducing the jury’s award. (Bigboy, supra, 154 Cal.App.3d at p. 404.) Plaintiffs do not disagree with trial court’s reasoning or contend that the evidence of past relationships should not have been disregarded, but rather that the balance of the evidence supports the jury’s award.

Plaintiffs also point to the trial court’s finding that “f any inference can be drawn from [the jury’s] votes [on liability and malice], it would not be that the jury was inflamed or emotional,” as well as the fact that the jury’s $9 million awards were less than half the $21 million requested, to argue that the record does not support the trial court’s ruling. But just because the trial court did not find passion or prejudice elsewhere in the jury’s verdict does not mean it could not find it in the amount of the award of noneconomic damages. And while the jury’s awarding less than half the amount requested may in general “suggest the jury eschewed passion or prejudice,” ([i]Phipps v. Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 343–344), the trial court expressly found otherwise under the circumstances of this case. We cannot say that finding was an abuse of discretion.

DISPOSITION

The judgment is affirmed. Each side shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

_________________________

Richman, Acting P. J.

We concur:

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Miller, J.

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Mayfield, J. *

Eaves v. Union Oil Company of California (A158406)

*Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Parts per million in this context means parts of benzene per million parts of air. A part-per-million year is a measure of cumulative exposure, where the average concentration during a typical workday is multiplied by the duration of the exposure in years. For example, 31 ppm-years is equivalent to being exposed to an average of 1 part of benzene per million parts of air each workday for 31 years.

[2] The jury voted 10–2 in favor of Union Oil’s liability on plaintiffs’ negligence claim.

[3] The jury voted 11–1 in favor of each noneconomic damage award.

[4] This finding was made by a vote of 10–2.

[5] “(a) In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion: [¶] . . . [¶]

“(2) If the ground for granting a new trial is excessive damages, issue a conditional order granting the new trial unless the party in whose favor the verdict has been rendered consents to the reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.”

[6] Union Oil’s brief also uses restrictive language in describing plaintiffs’ claim. For example, in the introduction, it describes the claim as Union Oil “negligently designed” it rubber solvents; several pages later it talks of a “negligent design defect.”

[7] The parties agree that this was supposed to read “1%.”

[8] Union Oil’s counsel objected to the question and moved to strike the testimony because Dr. Stewart had not been designated as an expert “on the design of rubber solvents or the ability to remove benzene,” noting that Union Oil had dedesignated its own expert on those topics when plaintiffs did not designate one. The trial court ultimately concluded that striking the testimony would “draw more attention to it,” so that “even though I don’t want any more discussion about it, I’m not going to strike it.”

[9] As noted, in 1976, rubber solvent manufactured at the Lemont refinery also contained benzene, but with a benzene content that was “typically . . . less than 1.0%, often as low as 0.5, and occasionally as low as 0.1%.”

[10] Union Oil does cite two unpublished Federal opinions.

[11] Howard explained why: “In the second established test for strict liability for a defective product, the issue is whether the claimed product defect ‘design embodies “excessive preventable danger” [citation].’ (Soule [v. General Motors Corp. (1994)] 8 Cal.4th [548,] 567.) In such a case, the jury considers if ‘ “the benefits of the . . . design outweigh the risk of danger inherent in such design” [citation]. But this determination involves technical issues of feasibility, cost, practicality, risk, and benefit [citation] which are “impossible” to avoid [citation]. In such cases, the jury must consider the manufacturer’s evidence of competing design considerations [citation], and the issue of design defect cannot fairly be resolved by standardless reference to the “expectations” of an “ordinary consumer.” ’ (Ibid., italics added & omitted; see Barker [v. Lull Engineering], supra, 20 Cal.3d at p. 430.) In such a case, expert testimony is required to assist the finder of fact. (Soule, supra, at pp. 566–567.)” (Howard, supra, 203 Cal.App.4th at pp. 425–426.)

[12] Rutherford is an asbestos-related cancer case. Union Oil disputes that the “increased risk” rule discussed in Rutherford applies outside the asbestos context. (See Rutherford, supra, 16 Cal.4th at p. 977 [“n asbestos-related cancer cases, a particular asbestos-containing product is deemed to be a substantial factor in bringing about the injury if its contribution to the plaintiff or decedent’s [i]risk or probability of developing cancer was substantial”].) Because we conclude that substantial evidence supports the jury’s causation finding under the ordinary substantial factor test, we need not reach the parties’ arguments regarding Rutherford’s “increased-risk” rule.

[13] “Ordinarily, when a plaintiff consents to a remittitur, he or she waives the right to an appeal on any inseverable issue. However, if the defendant appeals, the plaintiff may cross-appeal because the defendant’s appeal deprives the plaintiff of the benefits of consenting to the remittitur.” (King v. U.S. Bank National Association (2020) 53 Cal.App.5th 675, 680, fn. 1; see Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 343–345 [plaintiff may appeal reduction in damages despite consenting to remittitur where defendant appeals first].)

[14] The cases were Dizon v. Pope (1974) 44 Cal.App.3d 146, 147–148, where the statement said the “injury was to soft tissue and does not appear to be permanent” and Dorsic v. Kurtin (1971) 19 Cal.App.3d 226, 231, where the statement said that “[t]he nature and extent of plaintiff’s injuries were not of such a degree of severity, nor his disability of such permanence as to justify an award of damages” above a certain amount. (See Bigboy, supra, 154 Cal.App.3d at pp. 406–407, fn. 3.)